Unhappy Anniversary

The markets have recovered spectacularly from their losses twenty years ago. But the Supreme Court of the United States has not been so fortunate. Gary McDowell recaps this historical outrage and puts it into perspective. (free link)

Twenty years ago today the United States Senate voted to reject President Reagan's nomination of Judge Robert H. Bork to the Supreme Court. The senators may have had every reason to believe that was the end of the story. However ugly it had been, however much time it had taken, Mr. Bork's defeat was only one more routine sacrifice to partisan politics. But time would prove wrong anyone who actually thought that. The battle over Mr. Bork was politically transformative, its constitutional lessons enduring.

My favorite piece of trivia from Justice Clarence Thomas's book was that Judge Bork and his wife joined him for a dinner to celebrate Thomas's confirmation. Bork had set the stage for the Thomas fight. Thomas had the advantage of knowing how brutal the opposition would be, and less of a paper trail.

Post Bork (think about the world if Bork had been confirmed instead of Anthony Kennedy) we have inured to these confirmation battles and adapted: Bush's picks of Alito and Roberts are stellar. But the pain and trials documented in Thomas's memoir are gut-wrenching.

Chief Justice Taney was not conformed because of his work as President Jackson's AG in opposition to National Banking. Advice and consent is not new. Nor I suspect is bitter partisan rancor. But the intrusion of direct politics seems new and unwelcome:

The price paid has proved high, indeed. The defeat heralded a fundamental transformation in the process surrounding judicial appointments and thereby radically politicized the public's view of the nature and extent of judicial power under the Constitution. Confirmation battles from Mr. Bork to Clarence Thomas to Samuel Alito have taken on the trappings of ordinary political campaigns, from instant polling to rallies and protests and attack ads. Sadly, the courts are no longer above the fray.

Justice Ruth Bader-Ginsburg answered no questions and her leanings and philosophies were well known. Yet she was approved 96-3, based on her intellect and integrity. It is a crime that the same offer was not extended to Judge Bork.

UPDATE: I guess it is a good day to bring this up. I have had a copy of this paper on my hard drive for some time. "Sex, Lies and Jurisprudence: Robert Bork, Griswold, and the Philosophy of Original Understanding" by none other than blogging deity Glenn Reynolds (moment of silence as the prophet's name is invoked...).

Professor Reynolds links to it again today as he links to McDowell's piece and says "I also think that Bork was an unsuitable nominee who deserved to be rejected. And I say this as someone who is, in fact, more of an originalist than Bork, whose originalism was of a rather dubious and frequently uninformed nature."

I'm a big Bork fan. While there's every possibility I am just not bright enough to grab the subtleties, a couple readings of this (lengthy but very accessible) paper leave me wondering if Reynolds and I read the same book. I do not see the points in "Tempting" that Reynolds refutes.

If the Perfesser is "more originalist" than Bork, that's swell. I see Bork as more originalist than any of the current members save Thomas and possibly Roberts and Alito. The "Borking" gave us Justice Kennedy and likely frightened off several originalist nominees and the Presidents who would choose them. I cannot see how anybody who seeks original intent or text would not agree that the cause was not served when Bork was defeated.

SCOTUS Posted by jk at October 23, 2007 11:35 AM